Safiullah Ahmadi v Guardian News & Media Limited

The claimant sued in defamation alleging that an article published on the defendant's website conveyed meanings that there were reasonable grounds to suspect he was homosexual and had been in a relationship with another man. The defendant applied to strike out and for summary judgment on multiple grounds.

The court held that, as a matter of law, an allegation that a person is gay or in a same-sex relationship is not, in modern English law, defamatory of right-thinking members of society generally and accordingly that limb of the claim could not succeed (Defamation Act 2013, section 1 and the common law test of defamatory meaning). The court also held that, on the facts pleaded, the article (including an accompanying photograph) did not bear a meaning that referred to the claimant: a reasonable reader acquainted with the claimant would not, on reading the full article, conclude the article was about him. The claimant had not pleaded particulars of serious harm sustained within this jurisdiction sufficient to meet the statutory requirement. Although there was a live factual dispute about the date the claim form was lodged with the court for limitation purposes, the court found the claimant had a real prospect of establishing he brought proceedings in time and therefore refused summary judgment on limitation grounds. Having found no reasonable grounds for the claim overall, the court struck out the claim and entered summary judgment for the defendant.

The claimant, an Afghan national living in Kabul, alleged that an online article published by the defendant on 18 October 2022 about the abduction, torture and murder of a gay Afghan student, Hamed Sabouri, carried meanings that he was homosexual and had been in a relationship with another man. The article included a photograph which the claimant contended depicted him; for the purposes of the application the judge assumed the photograph was of the claimant.

Nature of the claim: damages for libel; relief sought included an apology and damages. The defendant applied for strike out and summary judgment arguing (inter alia) that the meanings pursued were not defamatory, that the article did not refer to the claimant, that there was no real prospect of proving serious harm in this jurisdiction, that limitation barred the claim, that the wrong corporate defendant had been sued (to be corrected), and that the proceedings amounted to an abuse of process. Alternatively the defendant sought a trial on preliminary issues.

Issues framed:

• Whether the alleged meanings were defamatory in law (including the operation of section 1 of the Defamation Act 2013 and the common law test of the reasonable reader).
• Whether the publication bore a meaning that referred to the claimant (reference) given the article named another person and contained detailed biographical material.
• Whether the claimant had shown serious harm within this jurisdiction.
• Limitation: whether the claim was issued within one year of publication or whether the claimant could rely on earlier lodging with the court under Practice Direction 7A paragraph 6.1.
• Procedural issues including service of particulars, substitution of the correct defendant, and whether the claim amounted to an abuse of process.

Court’s reasoning and disposition: on defamatory meaning the court reviewed authority and statutory context and concluded that identification as gay or being in a same-sex relationship is not generally defamatory to right-thinking members of society in modern England and Wales; historic authorities to the contrary were noted but held not to reflect current shared social values. On reference, the court held that, leaving aside the photograph, the article plainly referred to a different named, deceased person and contained numerous biographical details inconsistent with the claimant; the photograph alone was insufficient to carry the claimant’s case that the article referred to him. On serious harm the claimant had not pleaded or proved relevant consequences within this jurisdiction beyond subjective fear. On limitation the court accepted there was a real prospect the claimant could show the claim form was lodged within time under the Practice Direction, so summary dismissal on limitation grounds was refused. The judge concluded there were no reasonable grounds for the claim and entered summary judgment for the defendant, striking out the claim form and particulars of claim.

The court also ordered substitution of the correct defendant (Guardian News & Media Limited) and disposed of ancillary procedural challenges as either unnecessary or without merit given the primary disposal.

This was a first instance decision. The court entered summary judgment for the defendant, struck out the claim form and particulars of claim, and dismissed the action. Rationale: (1) as a matter of modern law an allegation that a person is homosexual or in a same-sex relationship is not defamatory of right-thinking members of society generally; (2) on the pleaded facts the article (including the photograph) was not arguably capable of referring to the claimant; (3) the claimant had no real prospect of demonstrating serious harm in this jurisdiction. Although the claimant had a real prospect of establishing timely issue under Practice Direction 7A paragraph 6.1, that did not save the claim on its merits.